Losing Patients

Legislators want closer scrutiny of BOMEX, but the medical board will seek more secrecy

The Arizona Board of Medical Examiners (BOMEX) plans to ask legislators for more power and more secrecy, despite harsh criticism at a joint legislative hearing last week.

BOMEX's proposed legislation would enable the director, at the board's discretion, to dismiss complaints, resolve cases in mediation and deny licenses. BOMEX also wants to exempt investigations from public disclosure and replace the nurse position on the board with a public member.

The proposal, which BOMEX has given to only a few key policymakers, sets a far different tone from that taken by BOMEX Executive Director Claudia Foutz during a joint House and Senate committee hearing last week. Foutz, who took the job amid staff turmoil May 11, faced tough questions from state legislators who were concerned that BOMEX restricted public access to board records.

The committee voted to keep BOMEX under close scrutiny. BOMEX will be reviewed again next year, and audited again the year after that, while other agencies are granted 10 years between reviews.

The legislators' rebuke capped a lousy year for BOMEX, which regulates the state's 14,000 medical doctors. Long-standing complaints about its lax treatment of physicians came to a head this summer after LouAnne Herron, a Phoenix woman, died during a botched abortion by Dr. John Biskind. Biskind had been allowed to keep practicing despite a similar incident in 1995. BOMEX does not discipline doctors in 90 percent of cases and has a history of sloppy investigations, according to an auditor general's report. The agency was also plagued by high turnover and staff turf battles.

Foutz started out her report to the lawmakers with a sunny list of accomplishments, but things quickly turned ugly when the subject turned to public records.

Foutz defended the board's September decision not to tell people seeking information on their doctors about complaints that were dismissed by the board or were pending. The staff also stopped telling people about letters of concern--a non-disciplinary measure used instead of a reprimand in thousands of cases.

Foutz told the committee BOMEX was delivering more information, not less. But when pressed by the committee members, she admitted that the board had cut off access to many complaints.

Representative Herschella Horton finally pinned Foutz down: "So a doctor could have 10 letters of concern--and we all know BOMEX uses them too much--and I could call in and not hear about any of them?" she asked.

"That is correct," Foutz replied.
Foutz also angered some committee members with her relentless spin doctoring and jargon. Senator Sandra Kennedy objected when Foutz talked about how she'd "aligned the physical infrastructure" and "achieved market focus."

"At what point do you get down to the nitty-gritty and tell us what you are going to do?" Kennedy asked. "'Streamline board operations?' What the hell does that mean? Put it in English and tell me."

Foutz told legislators she disagreed with her own board's decision and said she supported full public disclosure. "The decision the board made is clearly a very unpopular one," she told lawmakers, "and I will be asking them to reconsider it."

She even agreed with Senator Randall Gnant's idea to have doctors post their BOMEX record in their offices.

But that's not what Foutz and her staff are proposing to take to the legislature this coming session. BOMEX wants to exempt investigations from public disclosure--which means the public would only hear about those cases that resulted in a board action. Any complaints that are pending or were dismissed would then be kept secret by the board--the same policy that angered the committee.

BOMEX also wants to give the director--Foutz--the authority to resolve cases and deny licenses without presenting the cases to the board.

Despite her comments to the committee, Foutz says she still wants to exempt investigations from public disclosure. She believes it would help the board do undercover investigations in sensitive cases and would protect the reputations of doctors who are wrongly accused. Foutz emphasizes that, at this point, it's only an idea out for "feedback."

The feedback so far is not encouraging. Few people have problems with the expansion of the director's authority proposed by BOMEX, but the lack of disclosure draws fire from almost every quarter.

Dennis Burke, the head of Arizona Common Cause, a citizen advocacy group, worries that without access to all information, the public could be harmed.

"Clearly, there are instances in Arizona's recent history, in abortion and eye care, where the public could have saved itself some misery if more information had been known," Burke says.

Those concerns prompted Burke to drop out of an advisory panel organized by BOMEX earlier this year.

"I was afraid that they would say Common Cause was a part of this plan," Burke says. "Until they have a high degree of public confidence, they have to have a high degree of disclosure."

Senator Chris Cummiskey, a BOMEX critic who is not a member of the joint committee, also rejects a move to close down more records at BOMEX. "If you look at the audit of that agency, there are a number of changes that need to be made. But that does not include locking the public out of documents that should be available to anyone who wants them."

Not even the Arizona Medical Association, the state's physician lobby, goes as far as Foutz's proposal. ARMA supports a system where old dismissals of complaints are taken off a doctor's record if they have no other problems, ARMA lobbyist David Landrith says.

BOMEX ombudsman Eric Nickell maintains the idea could actually improve the agency. "We see it as a give and take," he says. "We'll give you a faster investigation . . . but we need to have the investigation kept secret until it comes before the board."

BOMEX isn't likely to find many friends with that point of view. Representative Sue Gerard, who chaired the hearing and defended Foutz at times, says she told agency staff there was no way the proposal would pass.

"I've also told them, there's no way it's going to fly in this legislature, because the legislature is angry about it and the public is angry about it," she says.

BOMEX has also discussed the proposals with Governor Jane Hull's staff. However, Stuart Goodman, a policy assistant to Hull, stresses that the governor only discussed the idea of keeping undercover investigations secret, not all investigations.

Foutz--who characterizes her committee appearance as a "bloodbath"--says there's a lot of work left to be done to clean up the mess she inherited.

"It's like I've bought a 1950s house. There's asbestos in the walls . . . [and] the electrical lines are shot," she says. "Unfortunately, I have to knock the walls down. But nobody can see that. All they can see is the dumpy little '50s house."

Legislators, however, warned Foutz they'll only wait so long for improvement. Gnant told the committee the old joke about the three envelopes left in his desk by the person he'd replaced. The first told him to blame his predecessor. The second, to reorganize. The third said, "Prepare three envelopes."

"You've opened two envelopes today," Gnant told Foutz. "I hope that we don't get to the point where you'll have to open the third."

You can check up on your doctor online--dismissals and all--at http://www.phoenixnewtimes.com/webextra/bomex/index.html

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